United States v. Hinton

                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 06-5258



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


CAMERON LEE HINTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-cr-00130-H)


Submitted:   February 13, 2008           Decided:   February 26, 2008


Before WILKINSON and NIEMEYER, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas R. Wilson, GREENE & WILSON, P.A., New Bern, North Carolina,
for Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Cameron Lee Hinton pled guilty, without the benefit of a

plea agreement, to one count of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924

(2000).      On    appeal,    Hinton       challenges   the        district    court’s

imposition    of    the   within-guidelines        sentence         of   188   months’

imprisonment.      We affirm.

           This court will affirm a sentence if it “is within the

statutorily prescribed range and is reasonable.”                    United States v.

Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.

2054 (2006).      A sentence that falls within the properly calculated

advisory   guidelines        range    is    entitled    to     a    presumption     of

reasonableness.      United States v. Johnson, 445 F.3d 339, 341 (4th

Cir. 2006); see Rita v. United States, 127 S. Ct. 2456, 2462-69

(2007) (upholding application of presumption of reasonableness to

within-guidelines sentence).

           Hinton’s sentence was driven by his designation as an

armed career criminal under the Armed Career Criminal Act, 18

U.S.C.A. § 924(e) (West 2000 & Supp. 2007) (“ACCA”).                     Hinton does

not challenge this designation.              Rather, he claims the district

court committed procedural error by automatically applying the

guidelines    enhancements      applicable       to    armed       career   criminals

without considering the factors set forth in 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2007).            See U.S. Sentencing Guidelines Manual


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§   4B1.4(b)   (2006).     Hinton       further   claims    his    sentence     is

substantively unreasonable because the enhancement of his sentence

pursuant to the ACCA resulted in excessive punishment that is cruel

and unusual in violation of the Eighth Amendment.                For the reasons

that follow, we affirm.

             Following United States v. Booker, 543 U.S. 220 (2005),

a district court must engage in a multi-step process at sentencing.

The district court must first calculate the appropriate advisory

guidelines range, making any necessary factual findings. Moreland,

437 F.3d at 432.      The court should then afford the parties “an

opportunity to argue for whatever sentence they deem appropriate.”

Gall v. United States, 128 S. Ct. 586, 596-97 (2007).                   Then, the

sentencing court should consider the resulting advisory guidelines

range   in   conjunction   with   the     factors   set    out    in   18   U.S.C.

§ 3553(a), and determine whether those factors support the sentence

requested by either party.        Id.

             In Hinton’s case, the district court correctly calculated

the advisory guidelines range of 188-235 months’ imprisonment.                  At

the sentencing hearing, Hinton’s counsel requested the lowest

sentence possible under existing law, but made no specific argument

regarding any of the § 3553(a) factors.           In imposing the low-end of

the applicable guidelines range, the district court noted that it

had considered the relevant factors under § 3553(a).                   This court

has held that a district court need not “robotically tick through


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§   3553(a)’s    every   subsection”    or   “explicitly   discuss   every

§ 3553(a) factor on the record.”        Johnson, 445 F.3d at 345.     This

is particularly true when the district court imposes a sentence

within the applicable guidelines range.        Id.;   see Rita, 127 S. Ct.

at 2468.   Because the district court imposed a sentence within the

guidelines range, no detailed statement of reasons was required.

We find no procedural error.

           We review the substantive reasonableness of Hinton’s

sentence under a deferential abuse of discretion standard.           Gall,

128 S. Ct. at 598.       Hinton acknowledges we have repeatedly held

that sentencing under the ACCA is neither disproportionate to the

offense nor cruel and unusual punishment, and thus does not violate

the Eighth Amendment.       See United States v. Presley, 52 F.3d 64, 68

(4th Cir. 1995); United States v. Etheridge, 932 F.2d 318, 323 (4th

Cir. 1991); United States v. Crittendon, 883 F.2d 326, 331 (4th

Cir. 1989).     We find his request for a change to existing law

without merit.

           The Supreme Court has long recognized the propriety under

the   Eighth    Amendment    of   subjecting   recidivists   to   enhanced

penalties. See Rummel v. Estelle, 445 U.S. 263, 284-85 (1980).

“Severe, mandatory penalties may be cruel, but they are not unusual

in the constitutional sense, having been employed in various forms

throughout our Nation’s history.”        Harmelin v. Michigan, 501 U.S.

957, 994-95 (1991).


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          Accordingly, we affirm Hinton’s sentence.    We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                          AFFIRMED




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